Debate 3-Argument Against the Resolution

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"Resolved: United States technology companies should stay out of regimes that force them to sacrifice the civil liberties of citizens as the cost of doing business in those states."

Arguments against:

PART I: UNITED STATES CIVIL LIBERTIES HISTORY—HOW CAN WE COMPLAIN ABOUT OTHER NATIONS (particularly developing or third-world nations)?

  • What are “civil liberties” and who defines them? What makes the United States the authority on these matters?
    • There is no debate that free speech and political association—incorporated in the 1st Amendment, are near and dear to the United States
    • Yet these and other liberties have changed with time even inside the United States
      • This is not necessarily a Act
      • Compare the US to Germany
        • US: filtering free speech “yes;” banning “no”
        • But are we outraged at a ban on Nazi propaganda in FRA and DEU? (Apparently only to “die-hard civil libertarians” per Zittrain and Palfrey)
    • Education, segregation, and Brown v. Board of Education were not significantly addressed for 100 years after the 14th and 15th Amendments.
      • Even then, Brown and its progeny were handed down when the United States was the laughing stock of the Western world
      • Our post-Brown society is hardly non-discriminatory; should the EU ban private countries from trading or supplying services to us?
    • Textualist and originalist interpretations of “fundamental rights,” focused on the Bill of Rights, only gave way to broader “substantive due process” rights in times of stability.
      • Contrast the fall of economic substantive due process in the post-Lochner New Deal era with the rise of individual rights substantive due process in the Warren Court
      • Speech, association, sexual orientation, and abortion have all become protected only in the aftermath of the economic juggernaut that is the post-1960’s United States\
    • Like many other rights, the right to freedom of speech, which includes the right to seek, receive and impart information, is not absolute. It can be reasonably restricted on the grounds of public order, health, morality, or the rights of others. For this reason, even corporations that are providing Internet services have to facilitate the freedom of speech, or of press, within such applicable limitations. For example, a corporation does not ignore its website being used for inciting terrorism, promoting genocide, spreading social hatred, selling slaves, or facilitating music piracy for that matter.
    • Even what the United States defines as morally enlightened would be deemed somewhat stunted by past and present civilizations and nations
      • Natural law?
      • If coexisting in time, the United States could justifiably bar certain works from ancient Greece that celebrated pedophilia
      • Is it not justifiable that countries desiring to balance individual rights vs. central governmental power in a different way than ours to do the same thing?
    • Freedom not only involves the freedom “to do” something, but the freedom “from” something
      • Property law and exclusion
      • Uniformity v. assault of ideas
      • Socialism v. democracy
        • “An everyday act of law enforcement in an authoritarian market looks like a human rights violation to a more liberal one”
        • Socialism offers less protection of free expression, but more protection of economic parity. If citizens balance in a different way than ours, is that wrong?
        • It is odd that we rile against socialist states performing the very functions of protecting the needs of the many over the needs of the few while we protect membership in such political parties here in the United States
        • Is it thus “OK” to hold such viewpoints only if the threat to United States policy and politics is small?
    • The United States has no problem, by GATT or otherwise, doing business with China and other countries on an economic basis
      • The GATT is relatively bankrupt of human rights requirements
      • Although GATS offers theoretically more, it is a voluntary and country-specific treaty
        • Both of those conditions were pressed by the United States before it signed on to GATS
      • If a country wants to utilize those conditions to avoid what it sees as a threat to political or societal stability, how can we complain?
    • Google and other private industries are just that…private.
      • Mission statements are not a basis for regulation and punitive measures
      • Making all possible information available to anyone with a computer or mobile phone
      • Is that really applicable even in the United States?
      • Perhaps we should focus on possible and leave it at that
        • There are technical precedents. In Germany, Google follows government orders by restricting references to sites that deny the Holocaust.
        • In France, it obeys local rules prohibiting sites that stir up racial hatred.
        • In the US, it assists the authorities’ crackdown on copyright infringements
      • The “enlightenment” of the United States regarding civil liberties is founded on and continues to focus on state action. The fear is generally of the state, not private actors
        • Brown v. Board of Education
        • Loving v. Virginia
        • Croson and Adarand contracts cases
        • 1st Amendment cases
        • Romer v. Evans
      • The Supreme Court finds that our Constitution reaches private parties usually only via the Commerce Clause; otherwise we utilize state police power
        • Heart of Atlanta Motel
        • Katzenbach v. McClung
        • Racism, sexism, and homophobia by the citizenry remain not only rampant but protected for the most part in the United States
        • How is the ambiguity and broad applicability of “public safety and welfare” (state police power in the United States) different than acts that “may jeopardize state security and disrupt social stability” (China)?
    • From both an historical and economic standpoint, the United States tolerates private trade with other nations despite their political or human rights agenda
      • Business is what allows the “fat” of philosophical discourse
      • Trade wars over universal norms (~ natural law) should be a real concern
      • Let private citizens fix the market if they perceive a deficit
        • Divestment from South Africa in the apartheid era was due mostly to political action and awareness campaigns by private citizens, not by the government (formal policies were not introduced until 1986—“piling on” to extant unrest and an AIDS epidemic)
        • If we want to stop Google, each citizen is free to stop buying Google stock, stop using Google or stop purchasing from its advertisers
    • Even a limited internet is better than no internet at all
      • China and other countries are simply outsourcing
      • Google.com, if available, may be blocked or filtered by the government’s own devices
      • Google’s filtered site still increases speed
        • Albeit not complete information
          • Notice is still given re: filter
          • Gaming, chatting, making friends, and business transactions are still possible—these are the high volume uses of the internet
          • Is it the blockade of elite diatribe that bothers us?
        • But a degraded search experience is almost as bad if not worse than an incomplete one
        • Who here surfed at 14.4?
        • Would we have the content if that standard were still in place?
      • Chinese bloggers, etc. are still receiving money from advertising
        • “[By] paying ad sense money to bloggers and other web folk in China, Google is getting independent financial resources to the most progressive members of Chinese society.”
      • Even the United States monitors its citizens
        • Are we truly “free” on the internet?
        • Are we even truly “free” on the telephone?
      • If we can define a baseline level of information, such as national and local news, recreation, availability of services necessary to exist, then anything above that is just frosting on the cake
      • The effect of restrictions may be minimal in countries that can ill afford internet infrastructure


PART II: EVEN TODAY THE UNITED STATES IS FILTERING AND CENSORING; THE DEBATE IN OUR COUNTRY INDICATES CONTROVERSY, SO PUSHING OUR VIEWS ON OTHERS IS ARROGANT AND ELITIST (Palfrey and Zittrain Articles)

  • What are we “enforcing?”
    • Again, what makes the United States the authority on morals, norms, utility, etc.?
      • International law and norms?
      • Natural law?
      • It seems legitimacy is in the eye of the beholder
    • Sex, commerce, culture, politics
      • The US regulates the first three
    • Political matter of “embryonic” growth gradually and inevitably into “enlightened,” but oftentimes varies or even explodes depending on factors such as economic or social distress, war, etc.
      • Civil liberties such as free speech and even mobility were restricted in our own past, particularly in times of war or political instability
        • See Schenk v. United States “clear and present danger”
        • See Korematsu v. United States “pressing public necessity”
        • "At the end of this war, Japanese will only be spoken in hell."
      • PATRIOT expression should thus be the real focus re: international debate
      • It is not as reprehensible to bargain away political expression
      • Our internal moral regulation of business is generally based on the free market
    • Even the end-to-end principle of net neutrality was and is regulated
      • At source: CDA, CAN-SPAM
      • On receipt: child pornography or copyrighted works
      • With rider: CAN-SPAM, COPPA
    • Shift even in the United States to “middle of the network”
      • Easier to identify and enforce; increased efficiency
      • Similar to expanding US Interstate Commerce Power to federalize business
      • Expansion of such regulation “in the name of public interest” is just another justification for the use of police power
      • Content-based filters and blocking +/- eavesdropping
        • Digital Millennium Copyright Act takedown provisions
        • CIPA
        • Library filters
    • Enforcement on Private Corporations
      • Is assistance with filtering and surveillance really the “trickiest ethical problem?”
        • Oppenheimer
        • Hardware v. software
        • Flexible filtering
        • Alleged advantages of “free” internet
          • Technical innovation and competition
            • Bomb building?
            • Why copyright or patent, then?
          • Democratic culture
            • Really in the US?
            • Is sex, commerce and culture really blocked in China?
            • The focal point again becomes politics (elitist)
          • Prevent Oligarchy
            • Copyright and patent place “enlightenment” in few hands
            • Argument of “free internet” to prevent further distributional disparity smacks of wink-and-nod acceptance of piracy
    • How are we, and how can we, enforce?
      • Lessig: law, code, markets, and norms
      • We believe enforcement should be by the free market and business principles
        • Duty to shareholders
          • Growth of market volume or share
          • Transparency
        • Transparency is owed to shareholders, not to Zittrain and Palfrey’s “end-user”
          • My gasoline does not come with a body count
          • My shares of Exxon can, however, be voted or sold in protest
          • Codes of conduct are not really more accessible than a “Googling” American
          • Voluntary “internal” regulation
      • Attempts at more formal enforcement
        • General
          • Node Control—the First Wave (see end-to-end principle above)
            • Ban on Transmission of Packets at Their Source
            • Ban on Possession or Receipt of Packets
            • Encumbrances on Flow of Information in Packets
    • Transmission Control—The Second Wave
      • State Encouragement of Private Action to Block Packets
        • CDA
        • DMCA
        • CALEA “wiretap”
      • Direct State Intervention
        • Injunction via DMCA
        • State entity blockade—libraries
        • CIPA
      • Specific to our debate
        • GOFA
        • International law
    • It seems hypocritical to cry about civil liberties and individual freedom but demand state regulatory action rather than relying on individuals and markets
    • Human rights activists, academics, and shareholder advocates create public discourse and are the proper means of creating transparency and market pressure
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